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Hardware State Bank v. Cotner

OPINION FILED OCTOBER 1, 1973.

HARDWARE STATE BANK, ADMR., APPELLANT,

v.

EDWARD COTNER, JR., APPELLEE.



APPEAL from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Moultrie County; the Hon. RODNEY A. SCOTT, Judge, presiding.

MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:

Hardware State Bank, as administrator of the estate of Jerry Lee Kidwell, deceased, filed an action against Edward Cotner, Jr., in the circuit court of Moultrie County for wrongful death. (Ill. Rev. Stat. 1967, ch. 70, par. 1 et seq.) A jury found for plaintiff and awarded damages in the amount of $55,958.90. Judgment was entered pursuant thereto. The appellate court, one justice dissenting, reversed, holding that deceased's freedom from contributory negligence had not been established as a matter of law (Hardware State Bank v. Cotner, 7 Ill. App.3d 212), and we granted plaintiff's petition for leave to appeal. Defendant urges that if we should determine that the appellate court erred, other issues concerning various evidentiary rulings, the sufficiency of the complaint, jury instructions and the amount of the verdict should be considered.

The facts giving rise to this occurrence are not in dispute. Deceased worked on defendant's farm for nine months prior to his fatal accident and in return for his services received a salary, living accommodations for himself and his family, as well as other benefits. On January 2, 1968, at 7:00 A.M., deceased arrived at defendant's home and stayed for about one-half hour. Deceased was informed that he might either obtain propane gas to be used in thawing water pipes or take the tractor to the farm and fill several animal-feeding bins. Deceased chose the latter activity.

Grain was placed in these bins from an auger wagon which was hitched to the tractor. An unguarded power shaft with several universal joints also connected the tractor and wagon. This shaft was powered by the tractor and would rapidly rotate when a clutch mechanism, located on the right side of the tractor near the steering wheel, was engaged. The rotating shaft in turn powered a "worm type" auger device at the bottom of the wagon. This device would push grain to the rear of the wagon forcing it through a spout into the bins. The elevation of the spout could be adjusted by means of a chain attached thereto, and the spout could be swiveled slightly sideways. At the front of the wagon, just above the power shaft, was a lever that was used to regulate the amount of grain being transmitted into the auger device.

Shortly before 8:00 A.M., deceased's naked body was found wedged between the power shaft and hitch. His right arm had been completely severed and his heavy clothing was entangled around the shaft. The uneven ground in the area was wet and slippery. The auger wagon was empty and grain overflowed from one of the feeder bins.

A prior employer testified that deceased had been a responsible worker. Robert Younger, a farm employee who had briefly worked with deceased, said that deceased was careful when he was around farm machinery.

Defendant was called as an adverse witness. (Ill. Rev. Stat. 1969, ch. 110, par. 60.) He corroborated other witnesses' observations concerning deceased's work habits. He explained that he had purchased the wagon which at that time was mounted on a truck. As he directed, a welder cut the wagon from the truck and adapted the wagon for use with the tractor by installing the hitch and power shaft. On the day of the accident the tractor's seat was enclosed with a plastic and canvas covering apparently because of the cold weather. The only way to dismount from the tractor at this time was by means of a step located in front of the left rear wheel. Defendant further stated that he and deceased had previously used the wagon when they filled the bins together and that deceased had done this work alone on 20 to 25 occasions. He described the bin-filling procedure as requiring that the spout be raised to an upright position, the tractor driven to an empty bin, the spout lowered and the power shaft activitated.

Dr. Donald Hunt, a professor of agricultural engineering at the University of Illinois, was called by plaintiff, who sought to establish his qualifications as an expert witness over repeated defense objections. This witness had taught courses dealing with farm machinery and had designed certain parts of several machines. He was a consultant on various farm machine problems and had authored several books on the subject, of which portions were devoted to power shafts and similar mechanisms on tractors. His familiarity with this type of device dated back to his youth when he worked on a farm. The trial court overruled all objections and found Dr. Hunt qualified to express his opinion both as an expert as well as a layman.

This witness then testified as to standards formulated by the American Society of Agricultural Engineers which were promulgated to familiarize farm implement manufacturers with certain design procedures. These standards suggested that a shield be placed over an exposed rotating power shaft to lessen the possibility of an operator coming in contact with it. Dr. Hunt related that his personal observations of farmer-designed machines of this nature in both this State and surrounding areas demonstrated that shields were used. Moreover, he was of the opinion that the custom and practice in Illinois complied with these guidelines. He testified that an inverted "U"-type shield could be placed over the shaft as a guard. This type of shield had been developed nearly 50 years ago. He estimated the cost of this item at about $50.

The trial court, as it had done prior to voir dire, precluded defendant from informing the jury of the facts that deceased's wife had remarried and that the defendant had adopted deceased's child.

It is basically plaintiff's position that the majority opinion of the appellate court failed to give due consideration to testimony regarding deceased's careful work habits. Such evidence, it argues, created a factual issue as to deceased's contributory negligence which was properly submitted to the jury. Defendant, however, maintains that there exists no doubt that deceased dismounted from the tractor, thereby placing himself in a position whereby his clothing might have come in contact with the revolving power shaft which deceased must have known was dangerous. Defendant argues that deceased should never have gotten off the tractor and that in so doing he violated the customary procedure utilized in filling the bins. Defendant also avers that no one directed deceased to alight from the tractor while the power shaft was in operation and, if deceased found it necessary to do so, he could have easily deactivated the device. Thus defendant concludes that deceased's careless manner in performing his work bars recovery.

The rule of law applicable to this issue is set forth in McElroy v. Force, 38 Ill.2d 528, where at page 534 we said: "The plaintiff in a personal injury action has the burden of proving that the person injured exercised the proper degree of care for his own safety at the time of the occurrence. However, in wrongful death cases where there are no competent eyewitnesses the plaintiff cannot prove his decedent's exercise of due care by direct testimony. In such instances, considering the practical problem of demonstrating freedom from contributory negligence, evidence of the prior careful habits, if pertinent, of the deceased may be admitted as tending to prove the deceased's exercise of due care." (See also Plank v. Holman, 46 Ill.2d 465, 470.) When such proof is presented there is a presumption that deceased was in the exercise of due care which may be sufficient to submit the issue to the jury. Casey v. Chicago Rys. Co., 269 Ill. 386, 391.

In the present case the record does not irrefutably support the position that the usual method for filling the bins necessitated that those involved remain on the tractor when the power shaft was turned on. Several factors are relevant to this conclusion. Defendant never specifically testified that this was the customary procedure. Moreover, it is undisputed that, on occasion, both deceased and defendant performed the work function together, thereby implying that at least one may have been off the tractor during this time. The grain flow into the auger was manually controlled by a lever located on the wagon above the power shaft, and the spout also could be manually swiveled, thereby resulting in a more efficient distribution of grain in the receptacle. It is perceivable that such activities would have necessitated a single operator being near the auger wagon while the power shaft rotated.

We further reject defendant's argument that deceased's knowledge of the danger precludes recovery. Such knowledge in itself is not a sufficient basis to find that deceased was contributorily negligent as a matter of law. (Devine v. National Safe Deposit Co., 240 Ill. 369, 374; Swenson v. City of Rockford, 9 Ill.2d 122, 127.) The primary question is whether one who knows of the danger employs reasonable precautionary measures to safeguard his well being. Devine ...


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